vs. ) CASE NO. 83-1974
WAYNE A. BRYAN, )
Respondent. )
This case was heard pursuant to notice on November 17, 1983, in Sebring, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint containing 16 counts filed by the Department of Professional Regulation against Wayne A. Bryan, the Respondent. The issues presented are whether the Respondent was guilty of the violations alleged in the Administrative Complaint.
For Petitioner: Diane K. Kiesling, Esquire
For Respondent: Did not appear and was not represented.
The Petitioner submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
The Respondent, Wayne A. Bryan, is a chiropractic physician holding license number 0001861 issued by the Board of Chiropractic Examiners.
At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent engaged in the practice of chiropractic at the Bryan Chiropractic Clinic, 155 Ridgeway Drive, Sebring, Florida.
On April 24, 1981, Jeanne Speight went to the Respondent's office for treatment of low back pain, which she attributed to work in her garden.
Upon her arrival at the Respondent's office, Mrs. Speight was advised by an unknown female office employee that she would have to be "X-rayed before she was seen by the Respondent.
A total of ten x-rays were taken of Mrs. Speight by an unknown employee before she was seen by the Respondent.
After a physical examination, the Respondent told Mrs. Speight to return the next day with her husband because she had a serious, life-threatening problem.
On the following day, Mrs. Speight returned to the Respondent's office with her husband. The Respondent spoke with the Speights and advised them that Mrs. Speight required an intensive treatment program consisting of four treatments per week over a three-month period with complete x-ray work-up each month during the treatment.
When Mr. Speight questioned the necessity of so many x-rays and suggested they obtain a second opinion, the Respondent became angry and predicted that Mrs. Speight would lose 99 percent of the use of her legs and be paralyzed if she did not take his treatment.
After her visits with the Respondent, Mrs. Speight sought treatment from another chiropractic physician, Dr. O. A. Speigel. Dr. Speigel requested Mrs. Speight's x-rays from the Respondent; however, the Respondent did not provide the x-rays, but furnished Dr. Speigel with a full report of the Respondent's findings, which Dr. Speigel described as excellent.
Mrs. Speight's records and x-rays were later examined by Dr. Richard Carr, a chiropractic physician.
According to Drs. Speigel and Carr, Respondent's diagnosis concerning Mrs. Speight's condition was consistent with the x-rays and reports. Further, did Respondent's prognosis as stated to the Speights that Mrs. Speight would lose 99 percent of the use of her legs was inconsistent with his diagnosis.
On January 6, 1981, J. C. Hickman sought chiropractic treatment from the Respondent for a muscle spasm in his leg.
Upon Hickman's arrival at the Respondent's office, prior to being seen by him but after a medical history was taken, Hickman had a series of spinal x- rays taken by Barbara Bryan, the wife of the Respondent.
Mrs. Bryan was not licensed as a radiologic technologist in the State of Florida until February 12, 1982.
During Hickman's first visit, an unknown female employee of Respondent's demanded and obtained a sample of Hickman's hair without explaining the purpose for obtaining this sample.
Hickman was examined by the Respondent, who advised him that he had serious problems and proposed a series of chiropractic treatments. The Respondent told Hickman that he did not use his hands directly on a patient in rendering treatment.
According to Hickman, the Respondent had him lie on the examining table in a prone position, and while he was in this position he received a mechanized blow or thrust to his chest. This description by Hickman of his treatment is not rejected but given less weight than his testimony on other aspects of his treatment with which Hickman was more familiar than the nature of
Respondent's manner and method of treatment. The Respondent advised Hickman to return the following day in order to receive the same treatment for his leg. At no time did the Respondent examine or touch Hickman's leg.
On or about July 11, 1980, Don Payne sought chiropractic treatment from the Respondent.
Prior to examination by the Respondent, his wife, Barbara Bryan, took a series of x-rays of Payne. As stated above, Mrs. Bryan was not licensed as a radiologic technologist in the State of Florida until February 12, 1982.
Thereafter, without explaining the purpose of it, Mrs. Bryan demanded a sample of hair from Payne. The manner in which the sample of hair was demanded annoyed Payne, who, although he permitted her to take the sample, did not advise Mrs. Bryan that he wore a full hairpiece from which the sample was taken.
The medical records of Mary Scofield were received into the record as Petitioner's Exhibit 4. The only other evidence presented concerning Ms. Scofield was the deposition of Dr. Richard Carr based upon his examination of her medical records. Dr. Carr could not conclude from the records that the Respondent's diagnosis and treatment of Ms. Scofield were improper.
Based upon their medical records, Dr. Carr opined whether hair analysis was proper with regard to the Respondent's patients. Dr. Carr based his opinion of the appropriateness of using this technique upon whether heavy metal poisoning was indicated in these patients. Because the test is recognized but controversial with regard to testing for vitamin deficiency, Dr. Carr's opinion is appropriately qualified. Mrs. Speight did not testify to any hair analysis performed. Hickman and Payne stated, and it is found that Respondent performed hair analysis.
CONCLUSIONS OF LAW
The Board of Chiropractic Examiners is authorized to discipline its licensees pursuant to the provisions of Chapter 460, Florida Statutes. This Recommended Order is entered pursuant to the provisions of Section 120.57(1), Florida Statutes.
The Administrative Complaint filed against the Respondent has 16 counts alleging that the Respondent violated various statutes and rules in the treatment of four patients. The Administrative Complaint generally alleges that the Respondent violated the same statutes and rules with regard to each of the four patients.
Counts Thirteen through Sixteen of the Administrative Complaint relate to the Respondent's treatment of Mary Scofield. The only evidence introduced to support the allegations of the Administrative Complaint were Ms. Scofield's medical records and Dr. Carr's opinion based upon the examination of those records. There was no evidence received that the Respondent violated the statutes and rules as alleged in Counts Thirteen through Sixteen.
Counts One through Five of the Administrative Complaint are based upon the Respondent's treatment of Jeanne Speight. Count One alleges that Rule 10D- 56.633(1)(a)(6), Florida Administrative Code, was violated because the Respondent did not authorize the x-rays that were taken of Mrs. Speight. Count One also alleges that the x-rays of Mrs. Speight were taken for screening
purposes contrary to Rule 10D-56.633(1)(a)(6)(b), Florida Administrative Code. Lastly, Count One alleges that Mrs. Speight's x-rays were taken by a person who was not certified as required by Section 468.302(1), Florida Statutes.
Considering the allegations in reverse order, the testimony of Mrs. Speight was clear that an unknown person took her x-rays. No evidence was introduced concerning the licensed or unlicensed status of this unknown person. This allegation is not proven. Concerning the allegation that the x-rays were not authorized by the Respondent, the record does reflect that the Respondent viewed Mrs. Speight's x-rays under such circumstances that it is clear the Respondent was aware that the x-rays had been taken and approved thereof. Therefore, although the record does not contain an order for the x-rays signed by the Respondent, it is presumed that they were ordered by the Respondent to be taken on his authority and that he was aware that they had been taken. It is therefore concluded that the x-rays were authorized by the Respondent to be taken and Rule 10D-56.633(1)(a)(6), Florida Administrative Code, was not violated. Lastly, regarding the allegations of Count One, no evidence was presented that the Respondent advertised free x-rays. Therefore, no presumption was created that the x-rays taken were for screening purposes. Although Dr. Carr did not feel that some of the x-rays were necessary, he could not say that they were not helpful in assisting the practitioner to reach a diagnosis. The remaining question is whether having x-rays taken prior to a physical examination being conducted proves than the x-rays are for screening purposes. No legal presumption exists concerning this, and, under the circumstances presented, it is concluded that the alleged violation of Rule 10D- 56.633(1)(a)(6)(b), Florida Administrative Code, is not proven.
Count Two of the Administrative Complaint alleges that the Respondent delegated duties to unqualified persons, presumably the person taking the x-rays of Mrs. Speight, contrary to Section 460.413(1)(v), Florida Statutes. As stated above, there was no evidence introduced regarding the identity of the person who took Mrs. Speight' s x-rays and whether said person was qualified or unqualified. The allegations of Count Two are not proven.
The allegations of Count Three are that the Respondent made false, fraudulent, and deceptive representations to the Speights, failed to conform to the generally prevailing standards of practice, and failed to practice at a level of care accepted in the community contrary to Section 460.413(1)(1), Florida Statutes. The record reflects that the Respondent's diagnosis was consistent with his clinical findings and that these were deemed accurate and appropriate by two other chiropractic practitioners. The record reflects that the Respondent advised the Speights that Mrs. Speight could lose 99 percent of the use of her legs if she did not receive the treatment recommended by the Respondent. Both chiropractic practitioners reviewing Mrs. Speight's records and the Respondent'S prognosis determined that it was wholly inappropriate, failed to meet acceptable standards of practice, and was contrary to the clinical findings and diagnosis. The allegation of Count Three is proven that the Respondent violated Section 460.413(1)(1), Florida Statutes, by failing to conform to the generally prevailing standards of practice in his professional relationship with Jeanne Speight.
Concerning the allegations of Count Four of gross or repeated malpractice contrary to Section 460.413(1)(s), Florida Statutes, because this is a single instance and is not "gross" misconduct or negligence, it does not constitute a violation of Section 460.413(1)(s), Florida Statutes. The allegations of Count Four are not proven.
Count Five charges that the Respondent failed to deliver Mrs. Speight's medical records to her second chiropractor, contrary to Section 455.241, Florida Statutes. This section provides that a chiropractor must furnish copies of all reports and/or records made of any examination or treatment upon request of the patient. The record reflects that a proper request was made to the Respondent for the records. The record reflects that the Respondent provided Dr. Speigel with a report outlining the Respondent's findings and diagnosis. Mrs. Speight's x-rays were not delivered; however, the statute does not mention x-rays but is limited to reports and/or records made of any examination or treatment. Dr. Speigel testified that the Respondent's report was excellent and assisted him in rendering treatment to Mrs. Speight. Count Five was not proven.
Counts Six through Nine relate to the Respondent's treatment of Jack
C. Hickman. Count Six alleges that the Respondent's wife took x-rays of Hickman before she was licensed as a radiologic technologist. Count Six alleges that the Respondent did not properly authorize his wife to take the x-rays and that the x-rays were used for health screening. The evidence again reveals that the Respondent knew about the x-rays, having reviewed them with Hickman. No evidence was presented that the x-rays were taken without authority. No evidence was introduced about advertising of free x-rays. The only evidence presented was that x-rays were taken of Hickman before he saw the Respondent but after his medical history and presenting complaint had been documented. The evidence presented does not establish a violation of the rules cited. The evidence does show that Mrs. Bryan took Hickman's x-rays in January 1981, over a year prior to the time that she was certified as a radiologic technologist. The Respondent knew or should have known that his wife was not certified to take x- rays and that her taking x-rays was contrary to Section 468.302, Florida Statutes. The Respondent violated Sections 460.414 and 460.413(1)(w), Florida Statutes, by permitting his wife to take these x-rays and is guilty as charged in Count Six.
Count Seven alleges that the Respondent delegated duties to others which ,he knew or had reason to know were not qualified. Presumably, this count refers to Respondent's authorizing his wife to take x-rays when she was not duly licensed. This count is proven (see discussion of Count Six above); however, this arose out of the same factual circumstances and constitutes one violation.
Count Eight alleges that the Respondent performed services not authorized by the patient Hickman, contrary to Section 460.413(1)(p) Florida Statutes. Presumably, this count refers to the analysis of Hickman' s hair. There is no evidence that the analysis of Hickman's hair was performed without his authorization, either directly or through acquiescence. Count Eight is not proven.
Count Nine alleges that the Respondent did not treat Hickman, presumably referring to the allegations that the Respondent never touched Hickman's leg, and that the treatment Hickman received consisted of a blow or thrust to the chest. Although Hickman stated that the Respondent did not touch his leg, chiropractic treatment does not require touching of the hurt member of the body to render treatment, and Hickman was not competent to offer an opinion regarding whether the Respondent's treatment by a blow or thrust to the chest was adequate or inadequate. Hickman was not seen by another chiropractor, and the only opinion offered concerning the propriety of the Respondent's treatment of Hickman was that of Dr. Richard Carr, who based his opinion upon an examination of the records and hypothetical questions. Although the hypothetical questions encompassed Hickman's description of the Respondent's
treatment, Hickman's description was too abbreviated and lacked sufficient detail to permit a reasoned opinion to be formed. Count Nine was not proven.
Counts Ten through Twelve relate to the Respondent's treatment of Don Payne. Count Ten alleges the same violations of rule and statute as the charges relating to Hickman above. The evidence shows that the Respondent's wife, Mrs. Bryan, took x-rays of Payne and that at the time she took the x-rays she was not properly licensed. This constitutes a violation of Sections 460.414 and 460.413(1)(w), Florida Statutes, as alleged in Count Ten. The record does not contain any evidence that the Respondent failed to authorize the taking of x- rays. The record shows that the Respondent was aware that the x-rays were taken and presumably did authorize the taking of said x-rays. There was no evidence of advertising of free x-rays and no presumption that the x-rays were taken for health screening purposes. The only evidence introduced that the x-rays were taken for health screening was that they were taken before Payne was seen by the Respondent. this is - insufficient to prove a violation of Rule 10D-56.633, Florida Administrative Code, as alleged in Count Ten.
There was no evidence introduced that the Respondent performed any professional services which Payne did not authorize, either directly or indirectly. The Respondent is not guilty of the allegations contained in Count Eleven of the Administrative Complaint.
With regard to the allegations contained in Count Twelve, Payne did not testify concerning any representations made to him concerning fees by the Respondent. Payne did state that the Respondent told him his spine was in terrible shape and that he needed an extensive treatment regimen to improve his situation. Subsequently, Payne saw Dr. Speigel for the same presenting problem. Dr. Speigel stated that because of a physical handicap, the result of a stroke, Payne's situation is not ideal and that he would benefit from chiropractic treatment. The Respondent's representations were not fraudulent as alleged in Count Twelve.
RECOMMENDATION
Having found the Respondent, Wayne A. Bryan, guilty of the allegations contained in Count Three, Count Six, Count Seven, and Count Ten of the Administrative Complaint, it is recommended that the Board of Chiropractic Examiners revoke the license of Respondent.
DONE and RECOMMENDED this day of December, 1983, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1983.
Diane F. Kiesling, Esquire Department of Professional
Wayne A. Bryan
vs. CASE NO. 0014088, 0016175
WAYNE A. BRYAN, D.C.,
Respondent.
This cause came before the State of Florida Board of Chiropractic at its duly noticed meeting of February 16, 1984, in Orlando, Florida, for final consideration. Upon a complete review of the entire record, including the Recommended Order, exceptions filed thereto, all other pertinent documents filed, and argument of counsel the following findings and conclusions are made:
It is therefore ORDERED that the license of the Respondent be REVOKED This Order shall become effective 15 days after filing with the Clerk of
the Department of Professional Regulation.
DONE and ORDERED this 16th day of April, 1984.
RON HARRIS, D. C.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by U.S. Mail to Wayne A. Bryan, D.C., 12837 Township Road, 168-RR, Findlay, Ohio 45840 this 19th day of April, 1984.
